Specialized expertise needed to disprove false accusations

By AdvocateDaily.com Staff

False accusations of physical, emotional and/or sexual abuse are a common occurrence in contested matrimonial cases, and refuting these allegations is a challenge for those assisting families in crisis, Toronto family lawyer Brian Ludmer writes in The Lawyers Weekly.

“If one is acting for a client falsely accused, the experience is often that of ‘guilty until proven innocent’ in a system focused on cautious protection of children. The accused parent then has to embark on a journey of ‘proving a negative,’ often under extenuating circumstances where the specifics of the allegations are either unknown, vary or are embellished over time, or are so amorphous as to be almost incapable of refuting,” explains Ludmer, principal of LudmerLaw.

In cases that involve false allegations of sexual abuse of children, parents face an almost inevitable push for a precautionary “supervised access” regime until the matter is figured out, says Ludmer, which comes without a definitive timeline or any criteria for lifting the supervised access.

“In many cases, this means that unless and until there is a trial to establish the truth or falsity of the accusations, that parent’s relationship with the child or children will be marginalized and impaired by the supervised access regime. In the short term, it would be important to have family supervision and unsupervised access in the community, at a minimum, in order to maintain as normal a relationship as possible and avoid the significant cost of third-party supervision,” he writes.

As Ludmer explains, the process of refuting false allegations involves piecing together objectively determinable facts and observations from third parties, and from the parties’ and children’s behaviour during the alleged events and showing as many discontinuities as possible.

“One broadly accepted concept is that memory of events degrades and is influenced by environment, suggestion and questioning over time. Fewer details of the original event can be recalled independently over time. Many false allegation cases conflict with this principle,” writes Ludmer.

“It is very important to piece together as many specifics of the allegations as possible in the exact wording shared by the alleging parent or child to all of the investigating and other third parties and chart them by date, forum, specific language and content, and who was present in the interview and what background, if any, was given to the interviewer. The discontinuities will then be apparent.”

In cases of false allegations of sexual abuse of children, a forensic psychiatric investigation will be mandatory and phallometric testing is strongly recommended, Ludmer explains, but it is not definitive.

In addition, he says, actions on the part of the parent or child making the allegations can be forensically important.

“For example, failure to contact the target of the allegation to check on a perceived incident and allow an opportunity for refuting or perspective or clarification can be indicative of a false allegation. A request that an allegation not be shared with the targeted parent can sometimes be indicative of a desire to appease one parent without having to account for the falsity to the other parent.”

Ultimately, he explains: “Refuting false allegations is a complex area requiring specialized expertise and experience and a detailed review of the developing jurisprudence in this area, some of which have published assessment criteria.”

As Ludmer adds, it is essential for legal and mental health advisers to understand the tools available to “prove a negative" in these cases.